Kamana v Police - [2015] NZHC 2933

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000283 [2015] NZHC 2933

BETWEEN
EMILE PILTZ KAMANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 November 2015

Appearances:

G Haydn for Appellant
N Dobbs for Respondent

Judgment:

23 November 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 23 November 2015 at 4.45pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date: ……………………………..

Solicitors/counsel: G Haydn, Auckland
Kayes Fletcher Walker Ltd, Auckland

KAMANA v NZ POLICE [2015] NZHC 2933 [23 November 2015]

[1] The appellant, Mr Kamana, was found guilty by Judge G A Andrée Wiltens in the District Court at Manukau on 7 August 2015 of refusing to permit a blood specimen to be taken. That is an offence pursuant to s 60(1)(a) of the Land Transport Act 1998. Mr Kamana was sentenced to a fine of $750, and disqualified from holding a driver’s licence for a period of six months.

[2] Mr Kamana now appeals his conviction. He argues that he was not given the required 10 minute period to consider whether or not to elect to have a blood test to assess the proportion of alcohol in his blood.

Factual background

[3] At about 1.30am on 26 October 2014, Mr Kamana was stopped while driving by the police. An evidential breath test was administered at 1.52am. The evidential breath alcohol test recorded that Mr Kamana had 598 micrograms of alcohol per litre of breath. At the time the statutory limit before an offence was committed was 400 micrograms of alcohol per litre of breath.

[4] The police constable – a Constable Young – informed Mr Kamana that he had failed the evidential breath test. This occurred at 2.02am. At 2.05, Mr Kamana was advised that:

(a) if he did not request a blood test within 10 minutes, the evidential breath test could of itself be conclusive evidence of an offence against the Land Transport Act;

(b)if he were to undergo a blood test, he must request one within ten minutes;

(c) if he underwent a blood test, the result of the evidential breath test could not be used in Court proceedings, but the blood test might be evidence of an offence against the Land Transport Act;

(d)if he chose not to have a blood test, that he might not be able to defend the proceedings against him in relation to his breath alcohol

reading on the basis that there was or may have been an error in the result of the evidential breath test.

Mr Kamana signed a form, recording that this advice was given to him.

[5] Further, at 2.06am Mr Kamana was given his rights under the New Zealand Bill of Rights Act 1990. Mr Kamana indicated that he did not wish to speak to a lawyer.

[6] Mr Kamana then immediately elected to take a blood test. This election was also made at 2.06am.

[7] A nurse was called. Constable Young said in evidence that Mr Kamana…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 2933
Decision Date: 23 November 2015

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered the appeal of Emile Piltz Kamana against his conviction by the District Court for refusing to permit a blood specimen to be taken. Mr. Kamana was found guilty of an offence under the Land Transport Act 1998 for refusing to undergo a blood test after being informed of his evidential breath test result. The court had to determine if Mr. Kamana was provided with the requisite 10-minute period to decide whether to elect for a blood test before he was asked to provide a blood specimen. The appeal hinged on whether the statutory requirement for a 10-minute consideration period was properly observed and if Mr. Kamana was subjected to undue pressure in making his decision. The court examined the evidence and the timeline of events to ascertain if Mr. Kamana was given the opportunity to exercise his rights under the Act. Ultimately, the court found that Mr. Kamana waived his right to the 10-minute consideration period by immediately electing to have a blood test after being fully advised of his rights, and that he was not subjected to undue pressure in making his decision. The appeal was dismissed, and the conviction was upheld.

The final orders of the court were that the appeal against the conviction was dismissed, and the conviction and sentence imposed by the District Court stood affirmed.

Orders